The Liberator: Cody Wilson's armed for a free speech battle

At a shooting range deep in Texas hill country earlier this year, Cody Wilson lifted a pistol, aimed, and pulled the trigger. The 25-year-old law student was no stranger to weapons or central Texas shooting ranges, but on that day, he was nervous.

Earlier, a Stratasys 3-D printer had added layer upon layer of melted plastic polymer until each of the gun's 15 component parts took form. (A 16th piece, a nail firing pin, was the only component not made of plastic.) The printer was obeying the commands of a computer design file that Wilson and the members of his nonprofit, Defense Distributed, had spent two months designing and perfecting.

Wilson and another Defense Distributed volunteer named John—an Austin-based engineer—had previously fired one of these plastic pistols remotely, yanking the trigger with a long string. But there was still a chance all the heat and pressure from the exploding round might rip through the barrel, causing the weapon to explode in his hand. So when the gun, named the Liberator, successfully fired a single .380 caliber round into the khaki-colored Texas dust, Wilson had good cause to relax—and celebrate. It was the first time a 3-D-printed gun had been fired by hand, and the story made international headlines, from the New York Times to the BBC to Germany's Der Spiegel and even the Colbert Report.

Wilson has always seen the Liberator as a political weapon as much as a technological breakthrough. It was a message to the world: If a working gun is as easy to print as a high schooler's book report, then the very concept of gun control would soon become an anachronism.

"Imagine if you want social change and radical change but you don't believe you can vote for it," Wilson, who describes himself as a crypto-anarchist, later told me. "And if you can create the world you imagined, well so much the better."

On May 9, Wilson's streak of victories abruptly ended. He scrubbed the Liberator's files, along with eight others related to 3-D-printed weapons, from DefCad, the website he'd created to freely distribute designs for 3-D-printable products. As an explanation, Wilson shared a letter he'd just received from U.S. State Department, which claimed Defense Distributed may have broken U.S. trade law by releasing the schematics of a firearm to foreign nationals.

It was the beginning of a long, quiet summer for Wilson. As State Department bureaucrats continue to weigh Defense Distributed's future behind closed doors, Wilson has traveled the world raising funds and building legal support, anticipating a battle that could either strangle the future development of open-source 3-D-printed weapons—or blow the door wide open.

"This is a kind of brand," Cody Wilson says. We're in his Austin apartment on a Monday morning earlier this month. To his right, one of his used Liberator pistols rests in a carrying case on the couch. To his left, Defense Distributed paraphernalia, mostly stickers, lies strewn across the kitchen countertop, giving the place the hectic feel of a grassroots political campaign's front office.

"People recognize what we do. People want to see stuff."

When he opened his mailbox and found that letter from the State Department, Wilson was on his way back from the student affairs office at the University of Texas. He'd just dropped out of school. It was an exclamation point on his year-long struggle to manage both the pressures of attending law school and running a high-profile political and technological nonprofit. "I hadn't been going to class the entire Spring semester," he admits. "I wasn't taking care of myself." Wilson crashed, taking a few weeks off.

It was a short break. Defense Distributed had become a name with international cachet, and he had no interest in squandering it—or his burgeoning community of supporters and fans. (Hence the stickers.) For the rest of the summer, Wilson jumped from one flight to another as he criss-crossed Europe and North America, meeting with big donors, attending conferences, and speaking at events, from Toronto's Ideacity to Ray Kurzweil's Singularity University.

You can see him being a hit on whatever amounts to the 3-D-printed gun fundraising circuit. Wilson is personable and polite in person but also piercingly intelligent. He'll take an argument from somewhere in the far, far right field of mainstream of American political discourse and weave it into something that even a dull political centrist might find persuasive. In TV appearances, he talks about Defense Distributed with a kind of romantic intensity and is prone to rhetorical and philosophical flourishes, like the time he politely told Glenn Beck to bone up on the work of French post-structuralist philosopher Michel Foucault.

If Defense Distributed were any other organization, you could imagine Wilson leading it to a very bright future, if only through the force of his personality. But that furious campaign to build support over the summer wasn't just about getting funds for the nonprofit's small overhead costs.

As Wilson put it: "At some point we expect the State Department to come down pretty hard."

Wilson and the other members of Defense Distributed's loose core of volunteers did everything they could to ensure their weapons obeyed U.S. gun laws—for instance, adding a thick steel bar into the handle to comply with the 1998 Undetectable Firearms Act and acquiring a federal firearms license from the Bureau of Alcohol, Tobacco, and Firearms. But they clearly never expected the legality of their operation could hinge on international trade laws. After all, they weren't exporting anything through ports or border crossings.

They posted documents to the Internet.

Every time a foreigner so much as looked at that Liberator file, however, Defense Distributed was unwittingly violating the stipulations of something called the International Traffic in Arms Regulations, usually referred to as ITAR. The act requires, in part, that exporters acquire State Department approval before handing over technical data about firearms (specifically, those listed here) to foreign nationals. This includes blueprints for pistols and other guns—either those made in a corporate lab, or by a bunch of unpaid volunteers.

When someone in say, Australia, loads of up DefCad.org and downloads the file, it's still an export. It just happened to take place digitally, through massive cables across the ocean floor.

For the first time in decades, Wilson's case is putting a spotlight on the way Cold War arms regulations, and their old-fashioned concepts about national security, are abrasively butting up against the First Amendment. Can the State Department really require you, me, or Defense Distributed to get its approval before posting something to the Internet?

There are a few cases where the answer is definitely “no.” Let's say you want to export schematics for a gun that are already publicly available, information you could find in a library or on a magazine stand. That data would exist within what the ITAR calls the "public domain." You're safe to do with it as you please—no winding trip through State Department bureaucracy required.

The public domain exemption is meant to shield corporations, nonprofits, or anyone else from attracting the State Department's fury over simply distributing something that's already freely available.

Nowadays, however, most information that's "freely available" is found on the Internet. But the ITAR's definition of public domain was last updated in 1984, before the World Wide Web even existed. Naturally, the word "Internet" doesn't even appear in the regulations.

Even if ITAR explicitly announced one day that, yes, the Internet really is the public domain, it's not like Wilson found the files on some pirate site first. He uploaded them himself—and made a big show of doing so.

"Once information is publicly available, it's no longer constricted," says Lawrence Friedman, a lawyer at Barnes, Richardson Colburn, a downtown Chicago law firm that specializes in international trade law."That's consistent with First Amendment speech rights. But you can't create publicly available information by unilaterally exporting controlled information and then saying look, it's publicly available. It's like trying to push the cart before the horse."

So if Wilson wanted to distribute the Liberator files without getting in trouble, he should have checked in with the State Department first, right? Well, here's the odd thing: Before that letter arrived in Wilson's mailbox on May 9, the department hadn't committed to a written stance on the issue.

That wasn't always true. The regulations used to make pre-approval explicit. Then in the 1980s, they were reworded in such a way that many in the industry believed only exports of technical data from government-funded projects required the government's blessing. Private data, like a homemade design for a pistol, was safe.

The confusing wording might have been intentional. It turns out the amendments in the '80s were added after a series of court challenges, including a 1978 Department of Justice memo that warned ITAR's regulations might be unconstitutional.

"The government was worried that if they lose this, they might loose the whole kit and kaboodle," says Matthew Goldstein, a Washington, D.C.-based export controls attorney who's written multiple papers on the ITAR's history. So they changed the wording. Unwritten rules, after all, are a lot harder to challenge than codified regulations.

Restricting what Americans are allowed say before they've even had a chance to say it has long been viewed as one of the most toxic forms of censorship in the United States. “Prior restraints,” as they're known, are almost always a violation of the First Amendment—except in cases of national security. But even that's a tough sell. As the court famously wrote in Near vs. Minnesota, "Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity."

Now, however, the rule is written, leaving open the possibility of a constitutional challenge. Here's the relevant portion of the letter to Wilson:

"Defense Distributed may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR."

Wilson, the former law student, is well aware of the legal battle his case might begin. "In the past it's arms exporters who've tried to throw up defenses," he says.

"But commercial speech is less protected. There's never been a nonprofit gun group that's done this. There's real tension between a regulatory apparatus that defines all guns to be military, and this separate definition of guns as speech."

Why the department is making this step now is murky. Wilson has a tendency to openly taunt Democratic members of Congress who support gun control. In December, a lone gunman bearing an AR-15 rifle murdered 20 children and six adults at the Sandy Hook elementary school in Newtown, Conn. Not long after, Wilson named one of his earliest printed parts, the lower end of an AR-15 assault rifle, after Diane Feinstein, the California Senator who sponsored a renewal of the assault weapons ban the following month.

It's possible, as one lawyer I spoke to said, that Wilson "was not making friends in the government."

Or perhaps, when the memo was sent five months ago, the department sensed a post-9/11 sea change in how the average American weighs civil liberties versus public security; Defense Distributed provided the perfect cover to slip in a major policy change. "If you follow the line of cases, the government should lose over this,” Goldstein says, referring to a string of Supreme Court cases that erred against governmental prior restraints on speech. “But the times are different. If you look at the threats, they're different."

There's no exact precedent for the Defense Distributed case. But for three years in the 1990s, the State Department conducted a criminal investigation into a programmer named Philip Zimmerman, who'd released his military-grade encryption software, Pretty Good Privacy (PGP), for free over the Internet. Advanced cryptographic software, like the schematics for Wilson's weapons, was regulated under ITAR.

Cvil liberties advocates rallied around Zimmerman, furious that, as Forbes's Andy Greenberg put it, "PGP’s inventor was being treated as if he were selling bombs or missiles to a foreign regime when he had simply put a powerful piece of privacy software on the Internet." In 1996, the government abruptly dropped the case without explanation, though many believed the public's outrage played a key role.

Now, the public's patience in watching civil liberties erode is at an all low, especially after leaks from former CIA analyst Edward Snowden earlier this year revealed the extent of the American government's digital spy apparatus. Maybe there's been another sea change. It's easy to imagine Wilson riding a similar wave of public outrage to legal redemption. Could this be Zimmerman, round two?

This time around, the State Department may not be so malleable, Friedman suggests:

What [Zimmerman] was talking about was purely mathematical methodology for encrypting information. Though that's a potentially important tool in crime, espionage and terrorism, it's much less directly so than a file for printing a gun. It's several steps removed from a threat to foreign policy, or someone's safety."

Similar cases take at most three months to evaluate. Defense Distributed has been waiting for five. Friedman says the letter was at best an "olive branch." At worst, "they're setting [Wilson] up."

When a decision finally arrives, the punishment could be severe. Civil penalties can include fines of up to $1 million and 10 years in jail, and each export is a separate violation, meaning penalties add up fast.

In May, Wilson admitted to Forbes's Andy Greenberg that it might be "impossible" to remove all the files associated with weapons from the Internet, simply because by the time he'd scrubbed them from his servers, they'd already spread elsewhere, including places like the Pirate Bay, the notoriously difficult to regulate haven for pirated software and movies.

Under ITAR, Defense Distributed is responsible for protecting its files, and its likewise responsible once those files make it out into the public. At the Pirate Bay, the Liberator gun was downloaded more than 100,000 times. Each one of those downloads represents a potential violation if the person on the other end is a foreign national. Wilson admits any fines could "bankrupt" Defense Distributed.

The vice is tightening from another side, too.

New York Sen. Chuck Schumer and Congressman Steve Israel are pushing to renew and update to the 1988 Undetectable Firearms Act, which expires this year. Israel's additions would ban individuals from producing not just undetectable weapons, but undetectable components, including ammunition magazines and firearm receivers—the part of the firearm that houses its working parts. The bill has been stuck in the House Crime, Terrorism, Homeland Security, and Investigations Committee since early April.

Defense Distributed hasn't stopped designing and prototyping 3-D-printed weapons. But with the State Department watching so closely, Wilson’s hesitant to promote any new breakthroughs.

Could he see himself doing this the rest of his life? Wilson's hedges his answer. For the time being, he's committed himself entirely to the fight. He's sought counsel from top civil liberties and Second Amendment groups (whose names he requested I keep off the record). "I've got people ready to take this to the Ninth Circuit," he says.

Then he adds:

If [Defense Distributed] can be used down the road to preserve or fight for certain digital liberties, that would be good."

Wilson is fond of political symbolism. There's his Feinstein magazine, of course. But the Liberator pistol also carries deeper meaning. It's named after a crude, single-shot pistol that allies dropped behind enemy lines in World War II.

Wilson must know these guns were a huge flop.

Of the 1 million made, General Eisenhower's staff only authorized 25,000 for use, and they saw limited action in Europe. The Liberators's creators hardly imagined an army of resistance fighters would rampage through German lines, armed only with pea-shooters. The guns had another purpose: a weapon of simple psychological warfare, a message to Axis occupiers that every inhabitant of every bombed-out hovel from Greece to France might be armed.

The Liberator file now resides on hundreds of thousands of hard drives around the world. Others will refine it, improve it, make it more reliable—and deadlier. No matter what happens to Wilson, his own message will be delivered, again and again.